#### Griffin *versus*Fellows, *et al.*

1. The ■ certificate of the commissioners appointed under the act of April 4th, 1799, and supplements, offering compensation to Pennsylvania claimants in the seventeen townships of Luzerne (Connecticut title), to the Public Committee of Providence township, one of the seventeen, is conclusive evidence that those from whom they derived the title were actual settlers, before the decree of Trenton, in 1782. *Per Elwell, P. J.,*adopted by Supreme Court.

2. The act of April 11th, 1795, forbidding the taking possession of lands in Luzerne County under title not derived from the Commonwealth, did not apply to lands in the seventeen townships. *Id.*

3. In 1796 a lease by the Public Committee of Providence was made to Fellows, his heirs, executors, and administrators, for lands in Providence for 999 years, with “ every privilege . . . appertaining, whether ways, etc., mines or minerals of whatever description,” he paying a yearly rent. The acts of April 2d, 1831, and April 14th, 1835, confirmed leases made by the committee, these confirmed the tenant’s title. *Id.*

4. The tenants under the lease of 1796 paid rent to the committee, and taxes up to 1865; this of itself would raise a presumption of confirmation by the lessor. *Id.*

5. The lessee entered into articles to sell and convey the leased premises *in fee ;*this was not a conveyance and did not work a forfeiture. *Id.*

6. A conveyance in fee by a tenant, will not work a forfeiture unless it divest the estate of the reversioner. *Id.*

7. A conveyance by bargain and sale acknowledged and recorded by a tenant conveys no greater estate than the tenant has and will not work a forfeiture. *Id.*

8. The opening of mines, there having been none opened, was to the prejudice of the reversioner, would work a forfeiture, and enable the lessor to recover in ejectment, unless authorized by the lease. *Id.*

9. The *habendum*determines what estate is granted, and may lessen, enlarge, explain, or qualify the estate in the pz-emises, and unless totally repugnant to it, is to be construed as if contained in the first part of the deed. *Id.*

10. When anything is gz-anted, all the means to obtain it and all the fruits and effects of it are also granted. *Id.*

11. By the lease the lessee was to have “every pz-ivilege of mines and minerals.” This gave him the right to the minerals and to dig for them. *Id.*

12. “ *Mineral”*embraces everything, not of the mez-e surface used for agricultural puz-poses. *Id.*

13. An ancient grant is to be construed by evidence of the manner in which the thing granted has always been possessed and used. *Id.*

14. The trustees of the cez-tified lands in Providence conveyed the land to Griffin. *Held,*that he thus held the legal title, subject to the lease of 1796 to Fellows. *Id.*

15. As to history of “Connecticut title,” Barney *v.*Sutton, 2 Watts, 31, cited.

March 12th, 1873.

Before Read, C. J., Agnew, Sharswood, and Mercur, JJ. Williams, J., at Nisi Prius.

Error to the Court of Common Pleas of *Luzerne '*County, of January Term, 1873. This was an action of ejectment commenced May 24th, 1866, by Joseph Griffin against Joseph Fellows and others, for a -tract of land in the borough of Hyde Park, Luzerne County, containing 50 acres, more or less.

*115The land was in what was the township of Providence, one of the seventeen townships in Luzerne County.

On the 8th of September, 1796, James Bagley and others, legally appointed a committee, and duly authorized by the proprietors of the said town of Providence, “ to let and lease out the public lands of the said proprietors, and lying in the township of Providence aforesaid, for such a term as they the said committee should think proper,” leased to “ Joseph Fellows, his executors, administrators, and assigns,” a tract, “ part of said public lands situate in said town of Providence,” describing it; also, another tract “ situated in said town of Providence, and also a part of said public lands,” describing it; also another, “situated in Providence aforesaid, and also a part of the said public lands,” describing it, uthe whole containing . . . one hundred and five acres, be the same more or less.”

“ To have and to hold the above granted and demised premises with every privilege, right, member, and appurtenance whatsoever to the same premises belonging or in any wise appertaining, whether ways, waters, watercourses, mines, or minerals of whatever description, to the said Joseph Fellows, his executors, administrators, or assigns, for and during and until the full end and term of nine hundred and ninety-nine years, fully to be completed and ended. Yielding and paying therefor yearly, and every year during the said term to the said proprietor’s committee or such other person appointed by them to receive the same, the sum of four pounds-, four shillings. . . . And also clearing and fencing within forp’ years of the date hereof eight acres of the said premises, and reserving on the said premises for timber and firewood, ten acres, and not in any manner destroying the timber of the same premises, except for clearing, fencing, and building in and upon the same till there are improvements sufficient to let out for seven pounds, ten shillings a year. . . . And it is hereby covenanted that if the said reserved rent shall be behind and unpaid for the space of sixty days . it shall and may be lawful for the said proprietor’s committee or such other person as may be appointed by them rto seize upon the goods and chattels that shall or may be found in or upon the same premises, and dispose at public vendue, sufficient to pay the said rent and costs attending the same. But if no such effects can be found upon the same premises, that it shall be lawful for the said committee or person appointed as aforesaid, to re-enter the same premises, and after public advertisement for that purpose, lease ou,t the lands to the best bidder, for such a term as will or might pay the said arrearage of rent and expenses attending the *116said execution. And at the end of the said term which the said premises were leased for under the said execution, it shall and it is hereby declared lawful for the said Joseph Fellows, his executors, administrators, or assigns, to take immediate possession of and re-oceupy the whole and every part of the same lands, for the remaining part of the term that shall be then unexpired. . . . And the said James Bagley, etc., for themselves, and on behalf of the said proprietors, do hereby covenant and agree to and with the said Joseph Fellows, his executors, administrators, and assigns, that he or they shall and lawfully may have, hold, occupy, possess, and enjoy, for the term aforesaid, all and singular the aforesaid premises, with every right and privilege and appurtenance to the same belonging, and the same and every part thereof will warrant and defend against the claims and demands of all persons whomsoever claiming the same under the Connecticut title.”

<The lessee went into possession under the lease, and continued in possession, paying the taxes, until August 11th, 1815,, when his estate in the property was sold by the sheriff to George Denison, Esq., who on the 22d of October, 1815, conveyed to Joseph Fellows, Jr., one of the defendants, who, with others, has continued in possession.

On the 2d day of April, 1831 (Pamph. L., 367), an act was passed, reciting that the townships of Wilkesbarre, etc., three of the seventeen townships of Luzerne, had laid out certain lots in them and appropriated them to charitable uses, etc., and committees had been appointed by the proprietors of the respective townships, to lease, etc., said lots, and the commissioners appointed under the act of April"4th, 1799 (3 Sm. L., 362), and supplements of March, 5th, 1800 (Id., 435), and April 6th, 1802 (Id., 526), authorizing compensation to Pennsylvania claimants, issued certificates for the time being for said lots in trust for the proprietors of the township, and the committees have from time to time sold a great part of said lands, but “ as the committees were not vested with the legal titles, the sales and leases made by them are invalid,” and the “ rents and debts due to the respective proprietors . . . cannot be recovered,” etc. It was enacted that the leases, etc., made by the committees be confirmed as fully as if the committees had had the legal title at the time of making the leases ; the act further provided for the election of trustees in the respective townships who should have authority to purchase and hold lands to the use of the proprietors of the respective townships, and to sell and convey them in fee simple, or for less estate, etc., and that the interest in lands and debts belonging to the *117proprietors of the three townships should be vested in the trustees, etc. By act of April 14tb, 1835 '(Pamph. L., 276), the provisions of this act were extended to “ the township and proprietors of the township of Providence, one of the seventeen certified townships,” etc. Joseph Fellows, the original lessee, died in 1835. The rents were duly paid to the committees of Providence township and the taxes up to 1815, and both since that time regularly from year to year.

The case -was tried on the 13th of January, 1869, before Hon. John N. Conyngham, President of Luzerne Common Pleas, and at the close, it was submitted to him ou the evh dence, as a case stated in nature of a special verdict. Judge Conyngham having died before rendering a decision, the case was, on the 13th of January, 1872, submitted in the same manner to Hon. William Elwell, P. J., of the 26th District, at a special court.

The plaintiff gave in evidence a certificate issued to James Abbott and John Taylor, public committee of the certified township of Providence, by the commissioners under the above-mentioned acts of April 4th, 1799, etc., for 50 acres, the land in dispute «being parts of lots No. 9 and 10 of the said township of Providence, surveyed September 9th, 1802, and returned January 2d, 1804.

On the 17th of July, 1812, a patent from the Commonwealth for 50 acres, parts of lots No. 9 and 10, the land in dispute, was issued to John Cary and John Taylor, town committee of Providence, and their successors, etc.

On the 13th of March, 1865, Henry Griffin and John Quinnan, trustees of Providence, conveyed the same, land to Joseph W. Griffin, the plaintiff.

It was conceded at the trial that there were no opened mines on the premises at the date of the lease in 1796, nor until 1810, when the lessee opened a coal mine; that coal had been mined more or less by the lessee and those claiming under him ever since, and that since 1855, from 3000 to 5000 tons of coal have been mined and sold. Since 1855 the lessee and those claiming under him, had erected valuable improvements for the purpose of mining, and prior to that they had made general improvements. Prior to the commencement of the suit nearly all the surface had been laid out in town lots. Stone quarries had been opened in 1855 and since, and stone in considerable quantities sold.

On the 22d day of August, 1865, Joseph Fellows, defendant, entered into articles'Of agreement to sell to Joseph J. Postens, another defendant, certain lots, part of the land in dispute.

“ Excepting and always reserving all the coal and other *118minerals beneath the surface of and belonging to said premises, with the exclusive right to the said Joseph Fellows, his representatives and assigus, to mine and remove the same by any subterranean process incident to the business of mining, and also to pass through the said premises by any subterranean passages to mine and remove the coal from any adjacent lands, without the i’ight, however, to enter upon the surface of said premises for any purpose whatever. The party of the second part agrees to purchase the said land subject to the above reservations and restrictions, and pay for the same to the party of the first part the sum of four thousand seven hundred and sixty dollars......Seven hundred dollars down, and the residue in ten equal instalments, to be paid yearly, on the 23d day of August, with interest from the 23d day of August.* 1865, and the interest shall be paid annually on the unpaid principal money. On the full payment of the said purchase-money and interest the party of .the first part agrees to execute and deliver to the party of the second part a good and sufficient deed of the said land *in fee*simple, with covenant and warranty, reserving the' coal and other minerals and privileges above stated, with a full and unconditional release and discharge forever on the part of the said party of the second part, his heirs and assigns, to the party of the first part, his heirs and assigns, from any liability for any injury that may result to the surface of the said premises from the mining and removal of the said coal and minerals ; and.with a quit-claim on the part of the party of the second part to the party of the first part, his heirs and assigns, all right, etc., to the said coal and the privilege of mining and removing the same..... The purchase-money may be paid by the said Joseph J. Postens at any time.”

At same date $4000 was paid on the contract.

Joseph Fellows made a number of similar contracts with other parties for different lots, part of the same lands.

The plaintiff’s propositions were:

“ 1. Joseph Fellows, the elder, took an estate for a term of years, under the lease in this case, viz.: For 999 yeara, and. it does not amount to a freehold, it is inferior to it; an estate for a term of a thousand years is only a chattel, and is held to be personal estate, and this may expire during the continuance of the term by *forfeiture.”*— Co. *Lit.,*45<-46.

“ 2. Forfeiture of the estate taken in this case may result by reason of the tenant’s having conveyed a greater estate in the land than the law entitles him to make, *i. e.,*a greater estate in the land than he possessed: Coke on Littleton, *119251; Blackstone’s Commen., p. 274; Wood’s Institutes, book 2, chapter iv, p. 289.”

The reason for the above doctrine is, that the remainder or reversion is put in jeopardy;- and it is but just that the estate should be forfeited and taken from him who has shown such a manifest and improper use of the estate devised.

A., holding a lease for a term of yeai’s, delivered up possession of the premises and lease, in fraud of his landlord, for the purpose of letting in hostile title. It was held a forfeiture of his title-: Ellerbrock *v.*Flynn, Crompton, M. & R. Exchequer Reports, 137.

“ 3. Forfeitures may also arise, by reason of the tenants having committed waste of the lands leased to them.”

The statute of Gloucester, 6 Edward I, chapter v, is in force in Pennsylvania. Report of the Judges, Roberts’s Digest of the British Statutes, pp. 46 and 426. He that is attainted of waste shall lose the thing which he hath wasted.-

The act of 1833, section 3d, provides that quarrying and mining, and all such other acts as will do lasting injury to the premises, is waste: Pamph. L., p. 99, supplement to the act of 2d April, 1803; Smith’s Laws, p. 89; Purdon’s Digest, 1007, pi. 2.

A tenant cannot open any new mines or quarries on the land without committing waste: Coke upon Littleton, 53. If the tenant digs for gravel, lime, clay, brick, earth, or stone hid in the ground, or for mines of metal, or coal, or the like, not being open at the time of the lease, it is waste: Coke upon Littleton, 53 (or first Institutes, 53); Baiubridge on the Laws of Mines and Minerals, p. 48, etc. When the owner of land makes a lease of the same, with all mines and minerals, if there be no open mines on the land, the tenant shall not open or dig for mines or minerals; the meaning of inserting mines, minerals, trees, etc., was that all shall pass, but, as timber and mines were part of the inheritance, no one should have power over them but such as had an estate of inheritance limited to him: Whitfield *v.*Bewit, 2d Peere Williams’s Reports, 240. If the waste is committed here and there throughout, all shall be recovered: Wood’s Institutes, book 2, chapter iv, pp. 295, 296.

Judge Elwell delivered the opinion of the Court of Common Pleas, May 13th, 1872, as follows :

“ The plaintiff seeks to recover, in this action, the possession of fifty acres of land, situate in that part of the city of Scranton which was formerly the borough of Hyde Park, in the certified township of Providence. His title -svas not much questioned upou the argument. For the purpose of *120this case, under the view which I take of the rights of the defendants as lessees under the legal title, it may be conceded that the title vested in the public committee of the township of Providence, by the certificate dated in 1807, granted by the commissioners appointed under the act offering compensation to Pennsylvania claimants, of certain lands within the seventeen townships of Luzerne County, passed on the 4th April, 1799, and its supplement, together with the patent from the Commonwealth, dated in 1812, became vested in the plaintiff’ by the deed from the majority of the trustees of'said township, on the 18th day of March, 1865.

“ Both parties in this controversy trace their rights back to what is called the ‘Connecticut title.’ The certificate granted to the public committee, is, of itself, conclusive evidence that they, or those from whom they derived the title, were actual settlers prior to the decree of Trenton, in 1782.

“On the 8th September, 1796, the then public committee of the township of Providence, executed and delivered to Joseph Fellows a lease of the land in question, for the term of nine hundred and ninety-nine years, for the yearly rent of four pounds and four shillings, and the taxes. The plaintiff’ now contends that this lease was,'at the time of making it, absolutely void, and conferred no estate upon the lessee, and we are cited to the act of the 11th of April, 1795, which forbid the taking of possession of any lands in Luzerne County under color of title not derived from the Commonwealth, or the late proprietors. But neither this act, nor that of 6th April, 1802, applied to lands within the seventeen townships.

“ It is unnecessary to refer particularly to the several acts of Assembly in reference to this subject. In 1814 (see 6 Laws Pennsylvania, 122) the legislature repealed the whole list of intrusion laws, acts to protect territorial limits, etc., and in 1818 so far recognized *some*rights of Connecticut claimants, as to respect the'law which suspended the act of limitation where lauds were claimed under Connecticut. Prior to this time, it was decided by the Supreme Court, in Carkhuff?;. Anderson, 8 Binn, 4, that the interest of a Connecticut settler in land within the seventeen townships, who was entitled by the act of 1799 to obtain a patent, was subject to the lien of a judgment. This case in effect decides what was expressly held by Judge Scott, in Barney *v.*Sutton, 2 Watts, 81, to wit: That after-acquired title of a Connecticut settler by a certificate under the act, inured to the advantage of a purchaser, where the vendor had conveyed or executed a contract before acquiring the legal title.

“ On the 8th day of April, 1826, Pamphlet Laws, p. —, a law was passed, enacting ‘ that the relation of landlord and ten*121ant shall exist, and be held as fully and effectually between *Connecticut*settlers, and between ■ Connecticut settlers and Pennsylvania claimants, as between other citizens of the Commonwealth on the trial of any cause now pending or hereafter to be brought within the Commonwealth, anydaw or usage to the contrary, notwithstanding.’ This act was held, in Satterlee *v.*Mathewson, 16 S. & It., 169, to be constitutional, and upon a writ of error to the Supreme Court of the United States, the decision was affirmed.

“But still more to the purpose, and directly in the line of the plaintiff’s title, and without which he must have failed for want of authority in the committee or trustees to make a conveyance, is the act of 2d April, 1831, Pamphlet Laws, 367, and the supplement thereto passed April 14th, 1835, by which *all leases*before made by the committee of the-proprietors of Providence township were confirmed, and declared valid.

“ The objection to the lease on this ground is an ungracious one, coming as it does from a landlord who holds under or by virtue of the *same*act of Assembly which confirmed the tenant’s title, and who is presumed to have knowledge of the fact, that for seventy years prior to his purchase the rent reserved had been paid to and received by his predecessors in the title. If th'ere were no confirming act of Assembly, there would arise, after this lapse of time, a presumption of confirmation by the lessor, by the acceptance of rent and the written receipt therefor.

“ It is contended, secondly, by the counsel for the plaintiff, that the tenant has forfeited his term by having conveyed a greater estate in the land than he possessed.

“ The facts, as stated, do not show any *conveyance*by the tenant. lie entered into *articles of agreement*for the sale of a number of lots in August, 1865, and covenanted with the purchaser that, on the full payment of the pui’chase-money (the lastinstalmentof which wouldfall due in 1875), he would execute and deliver to him a good and sufficient deed of the land, sold in -fee simple, with covenant of warranty.

•“ The law of England, upon the subject of forfeiture, the common law, does not go the length of declaring that even a *conveyance*by a tenant will in all eases work a forfeiture-. In order to have this effect it must be such as displaces or divests the estate of the reversioner; if it have not that effect the law will, not adjudge it a forfeiture. It must, therefore, be by *feoffment*and livery, *fór this only*operates upon the possession, and effects a disseizin. It cannot be by a grant or any *other*conveyance in the nature of a grant, such as lease and release, or bargain and sale — conveyances of this *122kind operating only on tlie grantor’s interest, and passing *only*what he may lawfully part with: 5 Pac. Ábr., 668 ; Title, Lease and Term for Years, Co. Litt., 251, 6 ; 1 Bik. Com., 274, n.; 1 Chitty’s Geni. Prae., 243, 4, 287 ; 1 Bouvier’s Law Diet., 602, and cases cited ; 2 Bik. Com., 120, n.

w The reason for the distinction as to the effect of the different modes of conveyance, is this: ‘ A feoffment may be a *tortious*conveyance creating a fee, even though 'made by the owner of a particular estate, and therefore incurring a forfeiture; but a lease, and release form but an innocent conveyance, which transfers only such an interest as the party conveying has, and therefore may be used without forfeiting his estate:’ 1 Chitty Gen. Prac., 827.

“ In McKee *v.*Pfout, 3 Dalí., 486, it was held by the Supreme Court of this State, and recognized as the law in numerous cases, that a conveyance by bargain and sale, acknowledged and recorded, of an estate in *fee simple*by tenant by the curtesy, was not a forfeiture of his estate, the reason being that a deed of bargain and sale operates by way of use, and couveys no greater estate than the bargainor may lawfully convey; *therefore it never toas considered as inducing a forfeiture on common-law principles:*Dunwoodie *v.*Reed, 3 S. & R., '445-454; 4 Kent’s Com., 85, 454:

“ If a deed, the ordinary modé of conveyance, cannot work a forfeiture, surely a mere *agreement*to convey, which may or may not be carried out, will not have that effect.

“ It is contended, lastly, by the counsel for the pláintiff, that the term is forfeited, by reason of *waste,*committed by the tenant upon the demised premises, by opening mines thereon, by mining and selling annually large quantities of coal, and by opening and working, for the purpose of sale, stone quarries, for a number of years before the commencement of this suit.

“It is an important fact in the ease that there were no opened mines or quarries on the premises at the date of the lease; that mining of coal was first commenced by the tenant in 1810, and quarrying stone in 1855 or 1856.

“ These acts were to the prejudice of the reversioner, and were undoubtedly waste, operating as a forfeiture of the term, aud entitling the lessor to recover the premises by ejectment, unless they were authorized by the lease, or the forfeiture was by some act of his. This brings us to the consideration of the most important and difficult part of the •case, involving the proper construction of the lease, and a determination of the rights of the parties under it.

“ In the first or granting part of the indenture the lessors say that *they*‘ have, and a majority of them *hath*granted, *123demised, set and to farm let, and by these presents do grant, demise, lease, set and to farm let, unto the said Joseph Fellows, his executors, administrators, and assigns, all that certain tract of land’ (describing these several lots or tracts). Then follows this clause: ‘To have and to hold the above granted and demised premises, with every privilege, right, member, and appurtenances whatsoever to the same premises belonging or in any wise appertaining, whether ways, waters, watercourses, *mines and .minerals*of whatever description, to the said Joseph Fellows, his executors, administrators, or assigns, for and during and until the full end and term of nine hundred and ninety-nine years, fully to be complete and ended.’

“ It is the office .of the *habendum*clause in a deed to determine what estate or interest is granted. It may lessen, enlarge, explain, or qualify the estate granted in the premises: 2 Elk. Com., 298. Unless totally repugnant to the estate granted, the words of the habendum are to receive the same construction as if contained in the first part of the instrument. In Wager *v.*Wager, 1 S. & E., 375, it was said by Tilghman, 0. J.Rhat ‘ one of the most important rules in the construction of deeds, is so to coustrue them that no part shall be rejected. The object of all construction is to ascertain the intent of the parties, and it must have been their intent to have some meaning in every part.’ This rule applied to the lease, relieves the mind from all doubt as to the meaning of the parties. When the lessors said that the lessee should have *every*privilege of mines and minerals, it was clearly their intention that he should reap *some*benefit and advantage from 'the exercise and enjoyment of that privilege. It never could have been contemplated that the tenant should forfeit all rights, if he made those expressly granted to him available. The *right*to the minerals being granted to him he might dig for them. It is a well-settled rule that when anything is granted, all the means to obtain it, and all the fruits and effects of it, are granted also, and all shall pass inclusive together with the thing by the grant of the thing itself: Noys’s Maxims, 198.

“ If there be a lease of land with the mines in it, and there be no open mines, the lessee may dig for mines, *otherwise the cjrant as to the mines will not take effect:*Sanders’s ('ase, 5 Rep., 12 a. b., 1 Inst. 54 b.; Liford’s Case, 11 Rep., 52; Co. Litt., 59 b ; 1 W. Sand., 323 n. c.; 10 Eae. Abr., 427 ; 1 Wash. Real Prop., 412.

“ The ease of Whitfield *v.*Eewit, 2 Peere Wms., 240, is not in conflict with Sanders’s ease, nor with the general doctrine as stated above. *There*the grantor conveyed to *124trustees, the fee simple of the lands, with all mines, etc., to his own use for life, remainder to A. for life, remainder to his first son in tail, Ayith other remainders stated, remainder to the grantor in fee. It was held, that being a tenant for life, A. could not commit waste, by opening mines, and that the words mines, trees, etc., were introduced that all should pass to the trustees, but as they w’ere part of the inheritance, no one should have power over them but such as had an estate of inheritance limited to them.

“The words used in conveying the fee to the trustees', were the mere usual and formal words to convey a fee, and there Avas nothing to indicate that the tenant for life Avas to hold the property dispunishable of waste. It is very evident it Avas not the design of the Lord Chancellor to overrule Sanders’s ease, but to distinguish the case under consideration from that. The one was a conveyance of the fee to trustee to support remainders for life and in fee, Avhile the other was a lease of a present interest to the lessee, in which the words used could have no operation or effect unless the' tenant was permitted to open and work the mines.

“ In a lease designed merely for agricultural purposes there is no occasion to say anything in regard to the mines or minerals, where thei’e are no open mines, unless it is intended to grant some interest therein. When they *are*mentioned it must be considered that there was a *purpose*in doing so, and when that purpose is plainly and expressly declared to be a privilege, a benefit to be enjoyed by the lessee, the case of Whitfield *v.*Bewit is not an authority against the exercise of the privilege granted. , .

“The term ‘minerals’ embraces everything not of the mere surface, which is used for agricultural purposes ; the granite of the mountain as well as metallic ores and fossils, are comprehended within it: Earl of Rosse *v.*Wainman, 14 M. & W., 859 ; Bainbridge on Miues, 1, note 1.

“ Having considered the case thus far upon the effect of the words of the lease, let us for a moment examine it in the light of the conduct of the parties.

“ It was said per Lord Hardwicke, in Attorney-General *v.*Parker, 8 Atk., 576, ‘ that there is no better tvay of construing ancient grants and deeds, than by usage.’ And the uniform course of modern authorities fully establishes the rule that an ancient grant is to be construed by evidence of the manner in which the thing granted has always been possessed and used; for so the parties thereto must be supposed to have intended: Weld *v.*Hornby, 7 East, 199 ; Rex *v.*Osborne, 4 East, 327.

*125“ More than half a century before the bringing of this suit, the lessee and those claiming his title, mined coal upou the demised premises. More than ten years before suit brought, they made valuable improvements for the purpose of mining coal, and annually mined, since 1855, from 8000 to 5000 tons. During all this period the lessors were annually, or from time to time, receiving the stipulated rent, without, so far as appears in the case, a word of complaint, either from the trustees or any inhabitant. It is true that it is not expressly stated that the trustees had notice of the opening of mines by the tenant, but after this great lapse of time and the notoriety which always attends the operations of mining coal, it may fairly be presumed and taken as *prima facia*evidence that not only the -committee, but all the inhabitants of the township had full knowledge, as well of the acts of the tenant in mining, as of the large amount expended in the way of improvements for the purpose of mining. Under these facts, if it were even doubtful whether the words ‘ every privilege to the premises belonging, whether mines or minerals, etc.,’ were intended to give the right to dig for, mine and take away coal, the meaning of the pa-rties is elucidated by the conduct which they have pursued. The right to mine coal, as claimed by the lessee, has been exercised since 1810, and fully acquiesced in by the lessor, by the receipt of the rent down to the first day of January, 1865.

“ But I put the decision of the case upon higher ground than that of waiver of forfeiture, and hold, that upon the face of the lease there is granted the absolute right to take minerals from the land demised, and for that purpose to dig the soil and open mines. When a lease permits the opening of mines, it is not waste for the tenant to work them, even to exhaustion: Per Head, J., Kier *v.*Patterson, 5 Wright, 361.

“ The conclusions at which I have arrived in this case may be summed up and briefly stated as follows:

“ 1st. That Joseph W. Griffin, the plaintiff, at the commencement of this suit held the legal title to the land in question, by virtue of a deed from two of the trustees of the public land of the certified township of Providence.

“ 2d. That the lease by the public committee of said township, made on the 8th day of September, 1796, to Joseph Fellows, for the term of nine hundred and ninety-nine years, for the rent of four pounds and four shillings annually, is a valid and binding instrument, and the conveyance of the legal title to the plaintiff was subject to all the rights of the defendants as assignees holding under that lease.

*126“3d. The articles of agreement entered into by Joseph Fellows, the present holder of the leasehold interest, to sell and convey in fee simple certain lots to Joseph J. Postens, W. B. Carling, and others, did not operate as a forfeiture of the term. If he had conveyed by deed, the only effect would have been to convey the residue of the term for years, and therefore no injury to the reversioner.

“4th. By the *term*of the lease, as well as by the construction given to it by the acts of the parties for more than fifty years before the plaintiff acquired his title, the lessee and his assigns have the right to mine coal and quarry stone for the purpose of sale.

“ 5th. Upon the whole case, the defendants holding as assignee of the original lessee have the right of possession as against the plain tiff — therefore,

“ Now, May 13th, 1872, *judgment for the defendants*upon the case stated with costs.”

The plaintiff took a writ of error and assigned for error, the entering of judgment for the defendants.

*D. PI. Randall,*for plaintiff in error.

The lease was for agricultural purposes, as appears by the premises; the *habendum*cannot give anything that is not in the premises, but may enlarge, abridge, or qualify them: 14 Vin. Ab., 145. The construction should be that most agreeable to the intent of the grantor: Dormer *¶.*Parkhurst, 3 Atk. R., 135; Wager *v.*Wager, 1 S. & R., 375. The restriction as to wood shows that woodland was not included in the lease: Greber *v.*Kleckner, 2 Barr, 289. If the lessee opened mines he. would be liable'to an action of waste ; if a stranger, the tenant could maintain trespass: 1 Washb. Real Prop., 3 ed., 411. Lessee could not open new mines: Astrey *v.*Ballard, 1 Freeman R , 444; Sander’s Case, 5 Rep., 12 a, p. 22 ; Darcey *v.*Askwith, Hobart, 234; Whitfield *v.*Bewit, 2 P. Wms., 240. If a lessee for years conveys in fee he occasions a forfeiture: Woodfall, Landlord & Tenant, 150; Smith, Landlord & Tenant,. 283; Willison *v.*Watkins, 3 Peters, 48; Stump *v.*Findlay, 2 Rawle, 168 ; Coke Litt., 233, b.

*A. Ricketts*and *A. T. McGlintock,*for defendants in error.

The *habendum,*if not repugnant to the estate granted, must receive the same construction as if in the first part of the instrument: Wager *v.*Wager, 1 S. & R., 374; Ongley *v.*Chamber, 1 Bingham, 483 ; Norton *v.*Webster, 12 Adolp. & Ell., 442. The lease gives “ every privilege, etc., pertaining to mines and minerals;” this gives lessee the right to work mines: Sander’s Case, 5 Rep., 12 a; 10 Bac. Ab., 427; V. *127Washb. Real Prop., 318, 411, 412; Clegg *v.*Rowlands, Law Rep., 2 Eq. Cases, 160; Co. Litt., 546 ; 7 Comyn’s Dig., 667 ; “ Waste,” D. 4. “Mineral” covers right to quarry stone: Ross *v.*Wainman, 14 M. & W., 859; Bainbridge on Mines, 1, note 1. Open mines may be worked to exhaustion: Kier *v.*Peterson, 5 Wright, 361. A tenant for years, unless l’estrained by covenants, may underlet or carve the estate into such forms as he pleases: 1 Washb. Real Prop, 442, 450. A grant of a larger estate than the grantor has passes only the estate the grantor had: Dunwoodie *v.*Reed, 3 S. & R., 445 ; McKee *v.*Pfout, 3 Dall., 486; Rohr *v.*Kindt, 3 W. & S., 566 ; George *v.*Morgan, 4 Harris, 108 ; Bennett *v.*Morris, 5 Rawle, 16 ; Desilver’s Est., 5 Id., 111; Sharp *v.*Thompson, 1 Wharton, 153; 4 Comyn’s Dig., 305, “Forfeiture,” A. 3. A grantee can claim no larger estate than his grantor had: 4 Comyn’s Dig., 395, note O; 3 Bar. Abr., 465 ; 2 Thomas’s Co. L., 134; Smith *v.*Clyfford, 1 T. R., 738.

Judgment was entered in the Supreme Court, March 17th, 1873.

Per Curiam:

Judgment affirmed on the opinion of Judge *Mwell.*